United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are defendant International-Matex Tank Terminals
LLC’s motion to dismiss (Rec. Doc. 10), plaintiff Paul
Eugene’s opposition (Rec. Doc. 15), and
defendant’s reply memorandum (Rec. Doc. 20). For the
reasons discussed below, IT IS ORDERED that
the motion to dismiss under Federal Rule of Civil Procedure
12(b)(5) is GRANTED in part, to enter dismissal
without prejudice under Federal Rule of Civil
Procedure 4(m). FACTS AND PROCEDURAL HISTORY
Plaintiff is a resident of Louisiana. See Rec. Doc.
2 at 2. Defendant International-Matex Tank Terminals LLC
(“IMTT”) is a Delaware corporation with a
principal place of business in New Orleans, Louisiana.
See id. IMTT previously employed plaintiff at its
St. Rose terminal. See Rec. Doc. 10-1 at 1.
brings this action pursuant to Title VII of the Civil Rights
Act of 1964, the Americans with Disability Act, and other
state laws. See Rec. Doc. 2. Plaintiff alleges that
his termination from IMTT was illegal and he suffered
resulting damages including loss of income, financial and
emotional distress, and suffering and loss of enjoyment of
life. See id. at 3. Plaintiff seeks, inter
alia, compensatory, real, and punitive damages. See
id. at 4. Plaintiff also prays that his employment with
IMTT be reinstated. See id.
filed this action on May 24, 2018. See Rec. Doc.
10-1 at 3. Therefore, he was obligated to serve IMTT no later
than August 22, 2018. See id. Plaintiff served IMTT
thirteen days after that deadline, September 4, 2018. See
id. at 4.
October 16, 2018, IMTT filed a motion to dismiss for
insufficient service or, in the alternative, failure to state
a claim. See Rec. Doc. 10. On November 13, 2018,
plaintiff filed a response in opposition. See Rec.
Doc. 15. On November 27, 2018, IMTT filed a reply memorandum.
See Rec. Doc. 20.
seeks dismissal pursuant to Rule 12(b)(5) because plaintiff
failed to serve IMTT within 90 days after the filing of his
petition as required under FRCP 4. See id. at 1.
Plaintiff filed his petition through counsel on May 24, 2018.
See Rec. Doc. 10-1 at 3. Therefore, he was obligated
to serve IMTT no later than August 22, 2018. See id.
Plaintiff served IMTT thirteen days after the deadline,
September 4, 2018. See id. at 4. Without a
good-cause explanation, the only conclusion is that plaintiff
failed to timely serve IMTT and his lawsuit should be
dismissed with prejudice. See id. “A dismissal
without prejudice would be futile in this case because
[p]laintiff’s deadline to file suit on his claims [has]
passed.” Id. When plaintiff failed to
effectuate timely service, his claims expired as if they were
never filed. See id. at 5. IMTT believed that it
would no longer face this lawsuit after it succeeded before
the EEOC and non-suit by plaintiff. See id.
Plaintiff has exhibited a clear record of delay such that his
claims must be dismissed with prejudice. See id.
reply, IMTT continues to urge that plaintiff’s petition
should be dismissed. See Rec. Doc. 20 at 2.
Plaintiff’s in forma pauperis status does not
provide good cause to excuse his failure. See id.
Plaintiff was not required to hire a private process server
at $250.00 per hour. See id. Pursuant to the FRCP,
plaintiff not only had the ability, but also the right, for
the U.S. Marshal to effect service of this lawsuit on his
behalf. See id. at 2-3. Plaintiff apparently never
requested service by the U.S. Marshal. See id. at 3.
The Fifth Circuit has affirmed dismissal of a lawsuit when an
in forma pauperis plaintiff failed to timely request
service by the U.S. Marshal. See id. Furthermore, in
the Fifth Circuit, a suit dismissed for failure to serve is
treated as abandonment under state law. See id.
Therefore, even if this case is dismissed without prejudice,
the dismissal would operate as a dismissal with prejudice
because the prescriptive period has not been interrupted
considering plaintiff’s failure to timely serve IMTT.
See id. at 3-4.
concedes that he perfected service of process on IMTT 13 days
late; however, he contends that dismissal based on
insufficient service of process is not appropriate
considering the totality of the circumstances here.
See Rec. Doc. 15 at 2. At all relevant times here,
plaintiff was proceeding in forma pauperis and
reportedly operating in good faith, in an effort to serve
IMTT in Baton Rouge, Louisiana, through personal service. He
attributes late service to his financial inability to hire a
process server at $250.00 an hour. See id.
further argues that dismissal without prejudice would not be
futile as the filing of the first complaint interrupted
prescription and plaintiff would have additional time to
re-file the complaint. See id. Plaintiff received
his right to sue letter from the EEOC on February 25, 2018,
making his complaint filing deadline May 26, 2018. See
id. He posits that since the instant complaint was filed
on May 24, 2018, this would allow an additional two days to
re-file his complaint if it were dismissed without prejudice.
See id. He proposes that in the interest of judicial
efficiency and equity, the instant complaint should not be
dismissed and even if it were, the dismissal should be
without prejudice. See id. at 3.
Rule of Civil Procedure 12(b)(5) allows a party to move to
dismiss a case for insufficient service of process. “In
the absence of valid service of process, proceedings against
a party are void.” Aetna Bus. Credit, Inc. v.
Universal Décor & Interior Design, Inc., 635
F.2d 434, 435 (5th Cir. 1981). “When service of process